Old Age and Survivor's Insurance

The courts of Minnesota recognize a strong presumption that a child born
during wedlock is a legitimate child. However, this presumption may be
rebutted by clear and satisfactory evidence that there was no sexual
intercourse between the parties during the period in which conception took
place.

Evidence that the last sexual contact between the husband and wife was
328 days prior to the birth of the child would not, in and of itself,
overcome the strong presumption of the legitimacy of a child born in
wedlock. However, where the child weighed only 5 pounds 15 ounces at
birth, the examining physician considered the pregnancy to be of 266 days
duration, and military records, a divorce decree, and a support petition
failed to list the child as a child of the insured individual.
Held, the evidence is sufficient to overcome the presumption of
legitimacy and support a finding that the insured individual is not the
child's father.

The deceased insured individual's widow has challenged the legitimacy of
a child conceived and born during a former marriage of the insured
individual. The child's mother and the insured individual were married on
November 28, 1960, and divorced on June 30, 1969. Two daughters were born
during the marriage. The child in question was born October 4, 1963, and
her birth certificate shows the insured individual as father.

The insured's military records show that he departed for Germany on
November 11, 1962, which was 328 days prior to the child's birth, that he
remained in Germany without returning or taking leave until November 1964.
The mother of the child stated that she and the insured had been separated
since March or April of 1962, but they had occasionally had sexual
relations thereafter, including during a three-day visit in November 1962.
Hospital records of an August 1963 obstetrical examination of the mother
show that she was 7 months pregnant at the time; and birth records
indicate that at the time of delivery, the mother was 38 weeks pregnant.
The child weighed 5 pounds, 15 ounces at birth.

Other evidence in the case includes military records showing a different
child as the only dependent child of the insured individual. The 1969
divorce decree states that one child was born of the marriage.
Furthermore, in March 1972, the children's mother filed a petition against
the insured individual under the Uniform Support of Dependents Law and
stated that the other child was the child born of the marriage.

Under applicable Minnesota law there is a strong presumption that a child
born to a married woman during wedlock is presumed to be the child of her
then husband. A question is raised, however, as to whether this
presumption is still applicable where the husband and wife were not living
together and a child is born 328 days after the last possible sexual
contact between the child's mother and the mother's husband. Under
Minnesota law the presumption of the legitimacy of a child conceived
during wedlock, while strong, is not conclusive, and may be rebutted by
clear and satisfactory evidence that there was no sexual relationship
between the parties during the period in which conception must have
occurred. See Curry v. Felix, 149 N.W. 2d 92, 95 (Minn., 1967)
citing Haugen v. Swanson, 16 N.W. 2d 900 (Minn., 1944).

Minnesota courts have stated that the period of gestation may vary from
case to case, and that there are exceptional cases of record of gestation
periods of 325 days or longer. See State v. Domish, 191 N.W. 1002
(Minn. 1923). If the only evidence in this case was a gestation period of
328 days, the presumption of legitimacy would not be overcome. However, in
this case, there is additional evidence to indicate that this was not a
pregnancy of 11 months, i.e., the size of the child at birth and the
medical reports at the time of delivery and 2 months before indicate that
this was not a pregnancy of 11 months duration. Thus, it would be
reasonable to conclude that conception of the child occurred at a point in
time when sexual intercourse between the insured and the child's mother
was not possible. The divorce decree, support petition, and military
records also support a conclusion that the child was not fathered by the
insured individual.

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